Your employee can use his or her cellphone to work-off-the-clockin violation of the Fair Labor Standards Act, send inappropriatetexts to a coworker in violation of your company's sexualharassment policy, post comments on social media criticizing yourcompany — and even you — in a way that is protected under theNational Labor Relations Act, download an email containingconfidential company information to his personal account andlawfully record (unbeknownst to you) work conversations all beforelunch.

Employees' cellphones are an indispensable part of their dailylives, even their work, but most employers fail to appreciate theinherent employment risks that cellphones create. This articleidentifies some of the legal issues arising from the use ofcellphones at work and best practices on how to address them.

Wage and hour claims.

Remember the 9-to-5 workday? Probably not. Today's workplace isalways connected. This matters because the Fair Labor Standards Actand many state laws require that employers pay non-exempt employeesa minimum wage for all time worked, and overtime for hours workedover 40 hours in a workweek.

If your nonexempt employees work outside of normal work hours —for example, checking and responding to emails, handling workcalls, etc. — they may be owed compensation for thattime.

If you have non-exempt employees who are always connected, takethese four steps: (1) define company objectives on working outsideof work hours (prohibit? restrict access? how will time be kept?etc.); (2) draft effective policies and train employees,particularly supervisors because they are often the ones contactingemployees after hours; (3) enforce policies and disciplineemployees and supervisors violating your policies on after-hourswork; and (4) require reporting of time spent on devices andcompensate employees for all compensable time.

Harassment and discriminationclaims.

Cellphones are a ticking time bomb for harassment anddiscrimination claims. The built-in camera, video recorder andaudio recorder that most cellphones contain can be used for deviousendeavors at work. Inappropriate electronic communications canoccur anywhere and at any time.

Worse yet, an undisputable record of the inappropriate conductnow exists; a graphic picture cannot be disputed. What is anemployer to do? To start, implement and enforce a strong harassmentpolicy covering electronic devices and activities outside of work,including those on social media. Second, consider banningcellphones in work areas because employees should be working — notplaying on their cellphone — during that time. Third, ensure thatyou consider emails/text messages as part of any workplaceinvestigation, and draft policies that mandate employees cooperatewith workplace investigations.

Thus, if an employee refuses to provide text messages as part ofan investigation, or deletes incriminating messages, you candiscipline them, up to termination. Lastly, consider implementingpolicies that permit your company to monitor employees' cellphoneusage. While care must be taken in this area of law, when doneproperly, employers have a right to review employees' cellphoneactivity, including text messages, emails, downloads, etc.

Violations of the National LaborRelations Act.

“I thought the NLRA related to unions?” It does, but it alsocovers nonunion employers and likely applies to your company. Whatdo you need to know?

Think twice before disciplining an employee for a social mediapost; posts relating to an employee's terms and conditions ofemployment and are concerted (for the benefit of more than oneemployee) may be considered protected activity for which you cannotretaliate. Further, the NLRA, enacted more than 80 years ago, hasnow been interpreted to permit non-supervisor employees to usetheir cellphones at work. What this means is that employees,under certain circumstances, can record conversations and videos atwork. Review your policies and consult with legal counsel for thebest practices.

Misappropriate of tradesecrets.

In minutes, a disgruntled employee can transfer your company'sconfidential information — client lists, business emails, marketingstrategies, account information, etc. — to his or her personalaccount for the purpose of later using that information to competeagainst your company. This scenario has become an all too frequentoccurrence in today's workplace. While it is difficult tocompletely stop an employee intent on stealing your confidentialinformation, the following steps will help.

First, ensure that all employees have valid restrictivecovenants (that comply with applicable state law) because suchcovenants will provide the company recourse if a departed employeecompetes against you. Second, implement security protocolsand limit server access. Take steps to protect your confidentialinformation, such as implementing passwords, firewalls andencryption software, marking important documents confidential, andrestricting information access to those employees who need toknow.

Third, maintain clear policies that departing employees mustfollow, including a requirement that employees return all companyequipment and property. Fourth, review a departing employee'sequipment and emails to determine if he has taken inappropriateactions. Lastly, immediately restrict a departing employee's accessto your company's network, applications, email accounts andphysical files.

Liability for employee negligence.

Simply put, texting on the job poses a safety hazard. Forexample, texting while driving a vehicle or operating heavymachinery should never happen. Not only does such conduct createsafety and health risks for your workers, but the company can beliable for employee accidents that occur while they are distractedby texting. Carefully evaluate all of your employees' jobresponsibilities to determine where texting might constitute asafety hazard and what steps should be taken to remediate thehazard, including, but not limited to, policies and follow-updisciplinary action.

Employers will continually be challenged with the legal risksinherent from employees bringing their electronic devices to work.Hopefully, it is apparent from this article that the most criticalstep a company can take is to draft clear and uniformly enforcedpolicies that address the varied legal risks. However, simplydrafting policies is not enough. This area of the law is in aconstant state of development and every prudent employer mustremain diligent in monitoring changes. Otherwise, your policieswill soon become as outdated as your original iPhone.